Archive for March, 2009

In the midnight hours of the departing Bush Administration someone in the Department of Interior decided it would be a good idea to revoke a long-standing rule prohibiting carrying concealed weapons in our national parks. Why someone would want or need to lug a hidden gun around in the parks was not discussed. I guess they were just remembering their King Lear, “Oh, reason not the need!”

So they adopted a new rule allowing concealed guns in the national parks. But they skipped the part about doing an environmental impact statement (EIS) as required by the law.

The Mythic Reason for Guns in National Parks

Recently, a federal judge in Washington D.C. threw out the proposed change on precisely that ground: An EIS was required but not performed; therefore, she granted an preliminary injunction against the government.

But before she did that, the judge granted an extension of time so the Obama Administration could file its own brief. The government, speaking through lawyers who now work for President Obama’s Justice Department, argued that the rule was valid because it only allowed people to carry the guns, not fire them. Since they couldn’t be fired, they would have no environmental impact; therefore, an environmental study was not required.

It is worth noting that the case, in its current form, does not raise issues concerning the Second Amendment, although the National Rifle Association is trying to make it do so. As of now, the case is purely about midnight rule-making and not a Second Amendment right to self-defense against wolves.

A Real Wolf

Besides, the Second Amendment has never allowed people to carry guns where ever they want. If you don’t believe that, try taking one with you the next time you go to the airport and see what happens.

Moreover, the idea that tourists and backpackers in our national parks need to carry hidden guns is silly. Hunters need guns; tourists don’t. I’ve backpacked my entire life and have never felt even the slightest need for a gun. In fact, the only time I’ve ever really been frightened by an animal in the wilderness was when some drunken Homo Sapiens started target shooting just over a ridge from where my family was enjoying a picnic.

A Real Girl

All this reminds me of James Thurber’s fable, “The Little Girl and the Wolf.” Once upon a time a little girl — let’s call her Red Riding Hood — was walking through a dark forest, perhaps one in a national park, on her way to deliver some food to her ailing grandmother. She was accosted by a talking wolf who asked her if she was taking the food to her grandmother. She said, “Yes.” So the talking wolf ran along to grandmother’s house and got there before the little girl. When the little girl arrived she went in and saw somebody in her grandmother’s bed wearing a night cap. Here is the rest of Thurber’s tale:

She approached no nearer than twenty-five feet from the bed when she saw it was not her grandmother but the wolf, for even in a nightcap a wolf does not look any more like your grandmother than the Metro-Goldwyn lion looks like Calvin Coolidge. So the little girl took an automatic out of her basket and shot the wolf dead.

Maybe I’ve never felt the need to carry a gun in a national park simply because I’ve never met a talking wolf, but perhaps it’s a bigger problem than I thought.

_____________________________
Thurber’s fable can be found in Thurber: Writings and Drawings published by the Library of America or in any copy of the original book, Fables for Our Time, first published in 1940.

The lynchpin of Defendants’ response is that the Final Rule has no environmental impacts–and that Defendants were not required to perform any environmental analysis–because the Final Rule only authorizes persons to possess concealed, loaded, and operable firearms in national parks and wildlife refuges, and does not authorize persons to discharge, brandish, or otherwise use the concealed, loaded, and operable firearms. In other words, the Final Rule has no environmental impacts according to Defendants because the Final Rule does not authorize any environmental impacts. By relying on this tautology, Defendants (1) abdicated their Congressionally-mandated obligation to evaluate all reasonably foreseeable environmental impacts, whether authorized by the Final Rule or not, and (2) ignored (without sufficient explanation) substantial information in the administrative record concerning environmental impacts, including (i) Defendants’ own long-standing belief under the previous regulations that allowing only inoperable and stored firearms in national parks and wildlife refuges was necessary to safeguard against certain risks to the environment and (ii) the almost universal view among interested parties that persons who possess concealed, loaded, and operable firearms in national parks and wildlife refuges will use them for any number of reasons, including self-defense against persons and animals (all of which suggests that the Final Rule will have some impact on the environment).

______________________

UPDATE: APRIL 18, 2009 – The Obama Administration’s Department of the Interior has announced that the government will not appeal. The National Rifle Association will.

For seven days the man known as the Lone Truther rode Coronado’s ghost trails, up out of the Sonoran Desert and across the Chihuahuan Desert. For seven days he heard no sound but the creaking of his saddle and Silver’s steady clip-clop, clip-clop, on the sun-baked earth. For seven days he avoided sky-lining himself, watching always for the tell-tale puff of dust in the distance or the talking-smoke that would tell him the Apaches had seen him.

The only things the Lone Truther knew about the Apaches was what he read in the Louis L’Amour books. Which meant that he knew they were the world’s greatest guerilla fighters and that they could hide where no other man could hide. Tonto had warned him about this ride; told him that an Apache could kill you so fast you wouldn’t even know you were dead. But he and Tonto were only fictional characters, invented in a time of stereotyping Native Americans, so what did he know really?

He wished Tonto had come along, but when he told Tonto of the cry for help from his old friends, the Wheathorns in Kansas, Tonto had wanted to know exactly what is was that the Wheathorns needed saving from.

“They’re surrounded, Tonto!”

“By whom are they surrounded, Kemo Sabe?”

“Illegal immigrants!”

“In Kansas?” asked Tonto, incredulously.

“Yes, Tonto!”

“Kemo Sabe, stop using exclamation points. You know I can’t stand that. And I refuse to believe there are enough illegal immigrants in all of Kansas to surround anybody. You go by yourself.”

And so the Lone Truther had ridden out alone. He had no choice. He had known the Wheathorns since he was a little boy and he loved them as much as he loved his own family. They were family to him. He would have ridden across all the deserts of the world to answer their call.

Deporting Bisbee Miners

He knew the history of the Mexican immigrants well. Born and raised in America’s Southwest, all land taken from Mexico at the point of a gun in 1848 — in a war Abraham Lincoln had opposed — the Lone Truther knew that the United States alternated between exploiting cheap Mexican labor when it was needed and deporting the Mexican workers when it was not. Between 1850 and 1888 55,000 field hands and more than 60% of the workers in Southwestern mines and railroads were from Mexico. Mexican labor was the fuel — the inexpensive fuel – that drove the agricultural revolution in the American West between 1900 and 1920.

Besides, Americans were always getting themselves involved in wars. While the young people were off fighting and dying, capitalism needed more labor and it was always right there, just south of the border. Then, when the war was over, and the remaining young people returned and needed jobs, the country devised ways of getting rid of the Mexican workers. In the aftermath of World War One, the United States even created the Border Patrol to keep new laborers out of the country and to find and escort out the invited ones already in the country. Then came the Great Depression and the clamor to get rid of that cheap labor pool was loud, long, and ugly. But then World War II arrived and all that labor was needed again and back came the Mexican laborers. A recession followed the Korean War and out they went again. By the time 21st Century arrived, the country was in yet another recession and it was time to get rid of the workers again. Economic boom and bust; get them in, get them out. The cycle was depressingly predictable.

It was true that the 12 million or so Mexican workers; all those motel maids, meat packers, and yard workers doing work that no U.S. citizen wanted their children to do, had broken one law — working in the U.S. without a Green Card — but they had not broken another, bigger law: The law of supply and demand.

Still, if they had surrounded his friends in Kansas, the Lone Truther would deal with them. With his six-shooter if necessary. He didn’t know exactly what he would do if there were more than six. Maybe they’d give him time to reload.

But when he got there at the end of his long ride, the farmhouse was placid and all was well. Sheriffs Earp, Arpeggio, and Johnson had gotten there first, rousted the immigrants, and Kansas was safe again. The Lone Truther stayed for a couple of days, helping with the undone yard work, meat packing, and motel cleaning, but then it was time to go west again. Born under a wandering star, he had to go back to where they called the wind Maria.

As he rode off into the sunset, the Lone Truther missed Tonto. He wanted him by his side when he rode out of Kansas and into Oklahoma so he could say, “We’re not in Kansas anymore, Tonto.”

_________________________________________
For more on the economic development of the American West, the Lone Truther recommends a survey by one of his college professors, Gerald D. Nash, The Federal Landscape: An Economic History of the Twentieth-Century West. You can buy it from the University of Arizona Press at this link.

A vulture flying north for the summer, decided to take an airplane instead of doing it himself. His experiments indicated that while airplanes use far more carbon calories than vultures; they use far fewer vulture-calories. Knowing that they don’t serve vulture food on airplanes, the vulture brought with him a dead armadillo to snack on. The ticket clerk asked, “Do you want me to check that for you?” “No need,” said the vulture, “it’s carrion.”

There is nothing unusual about a sycophant telling the boss or the teacher exactly what he thinks the boss or the teacher wants to hear. We’ve all known them, at school or at work or at a function attended by some luminary or celebrity. Too weak in their own selves, they curry favor with those they regard, rightly or wrongly, as authority figures.

We’ve been reminded recently of this fact of life with the release of some of the post 9/11 legal memoranda written by John Yoo, late of the Justice Department and now a law professor at UC Berkeley. Yoo was one author of the memos to President Bush — and, more to the point, probably Vice-president Cheney — in which Professor Yoo said that the President of the United States can suspend provisions of the Constitution of the United States or any statute if the country is at war. This is the same John Yoo who wrote a lengthy memorandum concluding — basically — that the United States doesn’t torture because nothing the United States does is torture.

Because the Nation has a strong Constitution, you can read the Yoo memos here, but only if you have a strong constitution. I don’t recommend them for anyone in frail health or with a low “outrage quotient.”

After reading the memos, this lawyer could not decide which was more astonishing, the absurdity of the conclusions or the incompetence of the lawyering.
Reading the Yoo memos you come away with an abiding conviction that he understands neither our Republic of ordered liberties nor this from the poet Wendell Berry:

You will be walking some night
in the comfortable dark of your yard
and suddenly a great light will shine
round about you, and behind you
will be a wall you never saw before.
It will be clear to you suddenly
that you were about to escape,
and that you are guilty: you misread
the complex instructions, you are not
a member, you lost your card
or never had one. And you will know
that they have been there all along,
their eyes on your letters and books,
their hands in your pockets,
their ears wired to your bed.
Though you have done nothing shameful,
they will want you to be ashamed.
They will want you to kneel and weep
and say you should have been like them.
And once you say you are ashamed,
reading the page they hold out to you,
then such light as you have made
in your history will leave you.
They will no longer need to pursue you.
You will pursue them, begging forgiveness.
They will not forgive you.
There is no power against them.
It is only candor that is aloof from them,
only an inward clarity, unashamed,
that they cannot reach. Be ready.
When their light has picked you out
and their questions are asked, say to them:
“I am not ashamed.” A sure horizon
will come around you. The heron will begin
his evening flight from the hilltop.

____________________
For a competent law professor’s view of the memos, here is Brian Tamanaha.

Strangely, the conservative law professors’ blog has had little to say other than Professor Orin Kerr speculating about what we still don’t know about other memos of the time.

Nor have the conservative law professors yet given us their take on this, based on a report from the International Red Cross, which seems to remove any remaining doubt that the United States of America tortured several people, probably on the orders of senior officials and with the “legal” blessing of Justice Department lawyers.

As we noted the last time we blogged ( here and here) about this important religious freedom case, in which a majority of the judges on the 9th Circuit Court of Appeals held that defiling the San Francisco Peaks of Arizona wouldn’t cause any harm to the people who believe the Peaks are sacred, we noted that the Native American tribes involved in the case have asked the U.S. Supreme Court to take the case. (No one has the automatic right to take a case to the Supreme Court and the Court hears only about 2% of the cases that it is asked to hear.)

Since we last blogged. several religious organizations have joined in asking the Supreme Court to take the case. Their “Friends of the Court” briefs make for interesting reading. One grouping of Native American tribes take the time to list just a few of the mountains around the world considered sacred by non-Native Americans.

The response to the requests for the Court to take the case, from the Forest Service and from the owners of the ski area, was first due February 9, 2009 but has now been extended by the Court twice and is now due on April 9th. It is not a stretch to imagine that the Forest Service, with a new boss in the form of President Obama, is reviewing its position in the case. The Forest Service could reverse itself, ask the Court to take the case and overrule its victory in the 9th Circuit. That would leave only the owners of the ski area asking the Supreme Court to let the lower court’s decision stand.

___________________

UPDATE: The Supreme Court granted yet another extension to the government and the ski slope operators to respond to the Tribes’ Petition for Certorari, now due May 8 2009.

I’ve never forced myself to sit down and read Samuel Pepys famous diary. The writing, to this modern reader, is stilted and a little boring. Pepys was nothing if not self-absorbed. But I have been reading it on the internet, where it is being published day by day and it is quite enjoyable in small daily chunks. We’re now up to March of 1666 when Pepys was in his mid-thirties, London beginning to recover from the Great Plague epidemic, England at war with Holland, and the great fire of London only six months away.

Here he is, writing on March 9th 1666.

Anon, all home to Sir W. Batten’s and there Mrs. Knipp coming we did spend the evening together very merry. She and I singing, and, God forgive me! I do still see that my nature is not to be quite conquered, but will esteem pleasure above all things, though yet in the middle of it, it has reluctances after my business, which is neglected by my following my pleasure. However musique and women I cannot but give way to, whatever my business is.

It must have been a nice spring in London that year because Pepys’ testosterone was up and running. In a single day, only a few days before this entry about pleasure, Pepys had sex with three women, only one of whom was his wife.

Elisabeth Pepys

Here is his entry for March 10th, 1666

The truth is, I do indulge myself a little the more in pleasure, knowing that this is the proper age of my life to do it; and out of my observation that most men that do thrive in the world, do forget to take pleasure during the time that they are getting their estate, but reserve that till they have got one, and then it is too late for them to enjoy it with any pleasure.

I see that everyone in the chattering classes is all worked up about Rush Limbaugh, who now claims to be the de facto head of the Republican Party. Just today, the Washington Post has a first page article, two op-ed pieces ( One and Two) and a cartoon. The more staid New York Times hasn’t had one in two days. Democrats are attempting to tar and feather all Republicans with the Boss Limbaugh brush and Republicans are kowtowing in mass, except for Republican governors who have real responsibilities and take them seriously.

As a lifelong Democrat I suppose I should be happy about this Republican train wreck. But, as a good citizen, I really am not. Even though the Founding Fathers weren’t crazy about a two party system, it has turned out to serve us well. It won’t be good for the Nation if the Republicans rebrand themselves the “Repuritans” and retreat to the South as their sole base of electoral support. The Nation needs Republicans to find this generation’s American version of Edmund Burke.

As for Rush Limbaugh, he is no Edmund Burke; but he is as American as apple pie.

America has a long history with people like Rush. They wear different faces each time they arrive and use different names but they are the same every time. They appear every time the economy goes south, a political realignment occurs, or a large cultural change is afoot.

But the well from which Rush appears to drunken the deepest is that of Father Charles Coughlin. For any of you who think Rush is anything new, listen to this.

Charles Coughlin

Here, for comparison, is the transcript of the rambling speech Limbaugh made last week to CPAC, a conservative organization not unlike the American Liberty League of the early 1930s. (David Letterman, referring to the black, open-necked silk shirt Limbaugh wore, said he looked like an “Eastern European gangster.”)

Father Coughlin, a Roman Catholic priest, also had a radio program. At its height, it was heard by twice as many Americans (40 million) every week than Limbaugh’s is today. As a percentage of the population Coughlin was probably heard by as much as one-third of the entire adult population during the early 1930s. Limbaugh doesn’t get that proportion even in his dreams. Coughlin reportedly got 80,000 letters a week. That is even more people than read this blog.

A fervent supporter of another demagogue, Huey Long, Coughlin started out supporting FDR and the New Deal but soon left that tent, striking out across terrain that eventually landed him in anti-Semitism, fascism and isolationism. But by then he had been effectively silenced by a combination of the government refusing him a license to broadcast — it could do that in those days because radio was a limited resource; today that would be called the “Fairness Doctrine” which conservatives rail against and probably wouldn’t work — and by the Catholic Church which ordered Coughlin to shut up. Unplugging Limbaugh like that would be impossible now.

Roosevelt was, according to Father Coughlin, “the dumbest man ever to occupy the White House.” He called FDR, “the anti-God.” By that time Roosevelt was probably glad that Coughlin had been born in Canada and could not run for president himself. But he was a significant political force in the United States and Roosevelt, Joseph P. Kennedy and other political leaders of the time were forced to devise ways of bringing him down.

That is the danger of inflammatory demagogues: On occasion they achieve a significant measure of political power. Like Limbaugh, almost all of them started out as fringe figures. H.L. Mencken called them “the pumper[s]-up of popular fears and rages.” Mencken had a fine definition for a demagogue; “one who will preach doctrines he knows to be untrue to men he knows to be idiots.” Max Weber noted that they don’t always lie. Sometimes they don’t need to. Instead they, “. . .use only special emphasis by which an uncritical listener will be led to draw the desired conclusion themselves.” Perhaps more frightening, they often believe their own words.

Well, I’ve done it now. I’ve offended Rush Limbaugh. I suppose I’ll have to apologize like everybody else. Even Jon Stewart of The Daily Show did it yesterday. I wonder if David Letterman will have to join me.

________________________

UPDATE: Neither the New York Times nor the Washington Post can leave this alone. Nor can the Republicans. Here is Minority Leader John Boehner calling Rush a “sideshow” and a “distraction.” Now he’ll have to apologize too.

And, in today’s New York Times, Timothy Egan – a fine writer and author of The Worst Hard Time, a history of the Dust Bowl – writes about the kerfuffle.

Politico.com has this summary of Congressional Republicans weaving around in the backfield trying to find a hole where they can escape Limbaugh’s wrath.

Fiinally, here is the serious, thoughtful George Packer on what it all means for the Republicans, at least in the short run.